*2
SEARS,
ELLIS,
Before
CANNON and
Again
jury
guilty
found Alfred
of
JJ.
abuse,
aggravated sexual
and the court
OPINION
eighteen years
sentenced him
in the Tex-
to
CANNON,
as Department
Justice.
of Corrections. Alfred filed
trial,
denied,
for
motion
new
which was
(Alfred)
Richard Lee Alfred
appealing
gave
appeal.
and
notice
this
of
jury
his
aggravated
conviction for
abuse for which the court below sentenced
error,
point
third
of
his
Alfred asserts
to eighteen years
him
confinement in the
pre-
error the trial
his
court’s denial of
Department
Texas
of Corrections.
in-
The
trial
quash
plea
motion to
on his
of
based
1,
cident
1980,
thus,
occurred on March
and
noted,
jeopardy.
previously
double
As
this
Alfred was tried under the
prevailing
then
appeal arises from
Alfred’s conviction
statute,
(Ver-
Tex.Penal Code Ann. 21.05
his
arguеs
second trial.
because
1974).
non
prosecutorial
there was
misconduct at the
points
error,
In three
of
Alfred asserts:
first
provoked
trial that
him to move for
(1) the evidence was insufficient
to
mistrial, a retrial should have been barred
aggravation
of
element
as found
plea
jeopardy.
his
of double
find no
(2)
jury;
per-
court
erroneously
below
error.
mitted
of
improper
аn
pre-trial identi-
Notwithstanding the fact that Alfred did
fication;
and
the court below erred in
provide
not
the statement of
court with
denying
quash
his motion to
based on a
facts from the first trial and thus furnished
plea of
jeopardy.
double
Because
find
we
us
no
from
to
review the
no merit
arguments,
to these
we affirm the
conduct,
prosecutor’s
we will nevertheless
of
court below.
allegations
assume as true Alfred’s
in or-
A brief procedural
review essential to
point
der to address
of error.
his
understanding
an
of this case. In Alfred’s
a num-
Supreme Court has rendered
trial,
jury
aggra-
first
convicted
of
of
ber
decisions that discuss the issue of
vated sexual
and
sen-
the trial court
jeopardy
double
when a defendant moves
eighteen
tenced him to
years
prison.
in
judicial
pros-
for
on
or
mistrial
the basis of
conviction,
appealed
and,
an
ecutorial misconduct. See United
States
unpublished opinion, the Waco Court of
DiFrancesco,
117, 130,
U.S.
101
449
S.Ct.
reversed and remanded for new
426, 433-434,
(1980);
unguarded
due
an
66 L.Ed.2d
trial
to
statement made
328
Unit-
Dinitz,
presence
600, 611,
the trial court in the
hear-
ed
96
States
U.S.
ing of
1075,
Alfred filed a
for
1081,
(1976);
motion
alleged misconduct did not result a express compel made threats to sub found mistrial. mission Rucker is to the guilty.... That was reversed placed fear of death or imminent serious 1. As S.W.2d in the court noted in Seek 646 “Thus, bodily injury. fact The court stated: (Tex.Apр. no [1st Dist.] —Houston totality may pet.), legislature finder infer from the the circum- amended Tex.Penal person’s stances a overall conduct September 1981 whether Ann. 21.03 in to allow acts, placed fear of death serious jury the victim in words deeds of the to consider the bodily injury.” Id. to decide whether the victim defendant Therefore, out, inapposite. being inquiry becomes ened with a rational knocked placed made trier of fact could that she whether the threats believe sustaining in fear of death imminent fear of serious threat that trier bodily injury. or serious Because a We conclude a rational of fact be action or conduct could that a victim is fear can communicated believe words, sustaining well as Blount v. when (Tex.Crim.App.1976), we that be “pretty S.W.2d thrеatened she would hurt complain- appellant’s bad,” especially light words to the the other actions consider in “wrestling” ant as well as his actions toward of Alfred with her and in “smacking” trier of could decide whether a rational fact around. Because we find guilty beyond reason- sup have found Alfred that there was sufficient evidence to port jury doubt of sexual abuse. element of the able point of error finding, Alfred’s first is over trial, At *4 ruled. approximately her abduction occurred at stopped a.m. on the 3:00 when she her car point, assigns In his second Alfred being by road after rear-ended Alfred’s error in court’s allowance of She stated that she her vehicle. exited impermissible on he what terms was an and request vehicle to show pre-trial Alfred’s impropеr identification. What where her vehicle had been hit. testi- She mention, neglects yet Alfred what the get fied that as she tried back into her reveals, is concerning that evidence car, “grabbed” hand, Alfred her “pulled me pre-trial the identification was first offered car,” me,” of the “wrestled said out with during counsel his cross-exami “ you ‘Don’t scream. Don’t dare complainant. Appellant the nation of can ” me in scream.’ and “threw truck].” [his complain not of the introduction of evi complainant escape, When the tried to he dence which himself introduced. Ad “got violent, very just as far as (Tex. ams v. S.W.2d smacking me around.” He to an drove her However, in Crim.App.1985). the interest unpopulated subjected area and her to two justice, we will address Alfred’s issue as and one-half of the sexually hours abusive presented. During conduct. the course of this complaining is not of the admis- duct, complainant the testified that complainant’s sion of in-court identifica- the “ “grabbed my and neck” said: T could tion; complaining rather he is of the admis- bad,’ your or,
hurt
neck real
T
hurt
could
complainant’s
sion
out-of-court iden-
of the
”
real
you
bad.’
further
that
She
testified
at a onе-on-one
tification
occurred
point,
at one
she
escape,
when
tried to
“he
confrontation between Alfred and the com-
grabbed
again
pushed
me
me down
plainant,
being
said confrontation
orches-
seat
the
and told me he
me
would hurt
police
trated
the
officers. The record
pretty
again.”
bad if I
that
tried
She also
complainant
that after the
was re-
reveals
thought
testified that “I
I was
sure
abductor,
her
leased
she contacted the
going to
put
be killed”
that Alfred
her
police.
police
get
her home to
sent
fear
imminent serious
later,
police
the
Two hours
some rest.
bodily injury
Serious
asked her to
to the station.
is defined as
called and
come
station,
“bodily
gave
complainant
creates
the
the
that
a substаntial At the
description
a
her
police
risk
death or that causes
officers
detailed
driving.
permanent disfigurement, or
and of the vehicle he was
protracted
abductor
gave
police
license
impairment
loss
of the
She
the
the
number
function
also
“GT-5335.” The
registered
organ.”
vehicle
member or
Tex.Penal Code
to this
1.07(a)(34)(Vernon 1974).
descrip-
Ann.
Har
did
match the
license numbеr
not
(Tex.
given by
complain-
the
rison v.
tion of the vehicle
ref’d),
police,
the
App.
pet.
ant.
recontacted
When
Dist.]
[1st
—Houston
complainant
court
threat
stated
she was sure of
held that when a victim is
letters,
time,
pellant
During
the numbers
but that she
his truck.
sequence
could have reversed the
complainant
subjected to continuous
subsequent
registration
numbers.
run
light
sexual abuse. She testified that the
the license
number “GT-3553” revealed
ing was moderate and that she had an
matching
complainant’s
a vehicle
de-
get
very
opportunity to
a
close look at the
scription
being registered
to Alfred.
defendant,
during
both
the time
and at the outset of her
7, 1980,
days
On March
six
after the
ap
when the defendant first
abduction
incident,
complainant
was called to the
proaсhed
stopped
her
vehicle and started to
five-photo spread
station to view a
talk to her at
car
also
window. She
picture
included a
of Alfred.
testified
She
testified that her in-court identification of
very
that she
saw individual who looked
Alfred was based on what she remembered
(Prior
pho-
similar to
abductor.
to this
night
from the
of her ordeal.
tographic spread,
police
complain
officer testified that
photos
previous
that she had looked at
two
description
fairly
ant’s initial
of Alfred was
times,
including
perusal
the first
time
a
addition,
accurate.
the time between
through
“big, huge
photos.)
book” of
the crime and the confrontation
six
police
then
asked
days,
lengthy delay
not a
which the
during
accompany them to a different location to
complainant may
forget
have tended to
see if she could find a
looked
vehicle which
physical
perpetrator
characteristics of
similar to
one which she had described.
Moreover,
*5
of the crime.
the record demon
location,
up in
While at the
Alfred drove
complainant’s
strates that the
in-court iden
complainant’s
truck
matched the
independent
time,
tification of Alfred was of
ori
description. During this
the com-
gin, apart
pre-trial
from the
confrontation.
plainant
building
was inside of a
at the
(Tex.
State,
657 S.W.2d
location. She was called outside to view Jackson
State,
Alfred,
standing
police Crim.App.1983).
also Joshlin v.
who was
with the
See
(stat
(Tex.Crim.App.1972)
officers. She identified Alfred as her ab-
out-of-court
there
of a one-man
error
of evidence
find no error. Pоint of
two is
Admission
due
overruled.
showup
more does not violate
without
of due
claimed violation
process; rather a
is af-
below
judgment
The
of the court
of a confrontation
process in the conduct
firmed.
totality of the circum
upon the
depends
State,
surrounding
it. Garza
stances
Justice,
ELLIS,
dissenting.
(Tex.Crim.App.1981).
633 S.W.2d
procedure
Finding myself
disagreement
with
if an identification
even
I
like to
unnecessary,
panel,
the admis
of the
would
suggestive and
other members
is
testimony does not
respectful dissent.
my
of identification
sion
long as the identifi
process so
due
violate
from a
of convic-
appeal
This
aspects of relia
possesses sufficient
cation
The al-
aggravated sexual abuse.
tion for
considered
Factors to be
bility.
at 513.
Id.
1, 1980.
offense
March
lеged date of
was
view; (2) (1)
opportunity
are:
Therefore, appellant
tried under the
(3)
attention;
accuracy of the
degree of
of that date Tex.Penal
prevailing statute
(4)
level of cer
the witness’
description;
(Vernon 1974).
Ann. 21.05
Code
the crime
(5)
time
tainty;
between
point of error as-
Appellant in his first
Id.
confrontation.
and the
insufficient
that the evidence was
serts
as
Herе,
the element
complainant testified that
majority on this
The
ap
found
one-half hours with
spent two and
threatening imminent
abuse
the sexual
disagreed and affirmed the convic-
panel
death.
bodily injury and
of serious
infliction
appellant’s
agree
contention
tion.
I
cause to
reverse and remand the
and would
presented
appeal
entry
order of
court for
of an
sup-
sufficient to
whether the evidence was
aequittál.
aggravated sexual
port
a conviction
alleged and,
particularly,
more
abuse as
charge against
basis
aggravation as al-
whether the
21.05(a)(2) of the Texas Penal
is section
leged
the Texas Penal Code section
under
repealed September
Code
21.05(a)(2)
aggravating
proven. The
Penal
21.05
the Texas
1983. Seсtion
21.05(a)(2),
elements contained
section
(1974)provides:
of sexual abuse
which elevate
offense
aggravated
are identical
Aggravated Sexual Abuse
21.03(a)(2),which
those contained
section
(a)
person
commits an
if
offense
he
rape
elevate the
offense
commits sexual abuse as defined in Sec-
rape.
tion 21.04 of this code or sexual abuse of
Rucker
child
defined in Section 21.10 of this
(Tex.Crim.App.1979)(opinion
rehearing)
code
he:
stated,
Court of Criminal Appeals
citing
(1) causes serious bodily injury or
Rogers
(Tex.Crim.
The indictment complainant thus open When tried to sexual abuse under the Texаs escape, “got very Penal truck door appellant 21.05(a)(2), section compelling violent, just submission far as me smacking Appellant
around.” unpop- drove to an subjected
ulated area and her to two and
one-half hours During of sexual abuse.
this time the appellant stated
“grabbed my neck” and said: “I could hurt bad,” or,
your neck real “I you could hurt
real bad.” She also stated that at one
point, when she escape, tried to “he
grabbed again pushed me me down
the seat and pretty told he would hurt me if I again.” stated,
bad tried that She also thought
“I for sure I going to be
killed” and put her in fear of
imminent serious injury.
I opinion am of the threats by appellant
made to the were amounting
not of such a nature to a threat
of death or There-
fore, I hold would the evidence is insuffi-
cient to the element of
as found
I would reverse and remand the cause to entry
the trial court for of an order of States, Burks v.
acquittal.
United
(1978);
U.S.
98 S.Ct.
Houston, appellee. JUNELL,
Before DRAUGHN and EL- LIS, JJ.
OPINION ELLIS, Justice. *7 Elin; Appellant, Thomas B. a licensed ELIN, Appellant,
Thomas B. attorney, appellee, Texas sued John C. Neal, developer, a real estate to recover a NEAL, Appellee. John C. $195,000 allegedly real estate commission Appellee, Neal, owed him. defended on the No. C14-86-141-CV. grounds purported agreement that the oral Texas, Court of was unenforceable as a contract for the (14th Dist.). Houston payment of a commission in connection estate, with the sale of real since the con- 6, 1986. Nov. writing in tract was not reduced to accord- 20(b) the Texas ance with Section Real Act, License Estate Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1986).1 art. 6573a securities, Appellee grounds 1. Neal sion in connection with the sale also defended alleged agreement registered that the oral was unenforcea since Elin was not a securities dealer. payment ble as a contract for the of a commis